Tallerman and Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10

Tallerman and Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10

By majority, the correspondence in March–June 1952 did not create a new contract made in Sydney, nor a varied contract substituting new obligations; at most, it constituted an 'accord executory' or a mode of performance under the existing contracts (made in Victoria). Thus, on the basis restricted by the parties, the High Court found no enforceable cause of action for the appellant in New South Wales, and upheld the result below but entered a non-suit to avoid prejudice to substantive rights.

Parties
Plaintiff, Appellant: Tallerman & Co. Pty. Ltd.; Defendant, Respondent: Nathan's Merchandise (Victoria) Pty. Ltd.
Jurisdiction
Australia
Procedural Posture
Civil Appeal / Appeal From the Supreme Court of New South Wales (full Court) to High Court of Australia
Outcome
Appeal dismissed, subject to variation of judgment below to a non-suit rather than judgment for defendant.
Legal Topics
Variation and Rescission of Contract, Jurisdiction of State Courts, Accord and Satisfaction, Sale of Goods
Contract Law Civil Procedure Variation and Rescission of Contract Jurisdiction of State Courts Accord and Satisfaction Sale of Goods

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 24 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Tallerman & Co. Pty. Ltd.

Plaintiff, Appellant

Nathan's Merchandise (Victoria) Pty. Ltd.

Defendant, Respondent

Procedural Posture

Civil Appeal / Appeal From the Supreme Court of New South Wales (full Court) to High Court of Australia

Legal Issues

  1. 1 Whether correspondence constituted a new contract, a variation, or an accord executory
  2. 2 If a new contract was formed, where and when was it made and could it be sued upon in NSW
  3. 3 Whether acceptance of an offer by letter posted in Sydney created a contract in NSW

Ratio Decidendi

By majority, the correspondence in March–June 1952 did not create a new contract made in Sydney, nor a varied contract substituting new obligations; at most, it constituted an 'accord executory' or a mode of performance under the existing contracts (made in Victoria). Thus, on the basis restricted by the parties, the High Court found no enforceable cause of action for the appellant in New South Wales, and upheld the result below but entered a non-suit to avoid prejudice to substantive rights.

Court Disposition

Appeal dismissed, subject to variation of judgment below to a non-suit rather than judgment for defendant.

Orders

  • Vary the judgment appealed from by entering a judgment of non-suit in lieu of judgment for the defendant.
  • Otherwise appeal dismissed with costs.